Johnson v. Carroll

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-24-2004

Johnson v. Carroll
Precedential or Non-Precedential: Precedential

Docket No. 03-2101

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 PRECEDENTIAL Counsel for Appellant

IN THE UNITED STATES COURT OF Joseph M. Bernstein (Argued)
APPEALS 800 North King Street, Suite 302
FOR THE THIRD CIRCUIT Wilmington, DE 19801
____________
Counsel for Appellee
No. 03-2101 ____________
____________
OPINION OF THE COURT
RONALD N. JOHNSON ____________

v. ROSENN, Circuit Judge.

THOMAS J. CARROLL, Warden; This appeal raises an interesting
ATTORNEY GENERAL OF question under the recent enactment of the
THE STATE OF DELAWARE Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) pertaining to the
Thomas Carroll, failure of a state judge to recuse himself
Appellant because his impartiality might reasonably
____________ be questioned. A grand jury in Delaware
indicted Thomas Carroll for the theft of
Appeal from the United States District property valued in excess of $1000,
Court possession of a deadly weapon by a person
For the District of Delaware prohibited, and several other related
D.C. No.: 02-cv-00562 crimes. After a trial to a jury, he was
District Judge: Honorable Joseph J. convicted of the weapon charge and the
Farnan, Jr., Chief Judge lesser included charge of aggravated
____________ menacing. He was acquitted of all other
charges. He was sentenced to eighteen
(Argued: February 24, 2004) years imprisonment as a habitual offender.
The State Supreme Court affirmed his
Before: RENDELL, BARRY and conviction and sentence. Johnson v. State,
ROSENN, Circuit Judges 797 A.2d 1206 (table), 2002 WL 714520
(Del. April 22, 2002).
(Filed May 24, 2004)
Without filing any post-conviction
Thomas E. Brown (Argued) motion in the state court, Johnson filed a
Office of Attorney General of Delaware petition for a writ of habeas corpus in the
Department of Justice United States District Court for the District
820 North French Street
Wilmington, DE 19801
of Delaware under 28 U.S.C. § 2254(d). 1 prosecutor, at a social function at Liguori’s
The District Court conditionally granted home. “As you both know Jim Liguori, if
Carroll’s petition for habeas relief as to his you see him, he talks about cases all the
sentence, concluding that there existed an time.” The judge informed counsel that
appearance of bias on the part of the Liguori made a comment about Johnson
sentencing judge. Johnson v. Carroll, 250 during their conversation. As related by
F. Supp.2d 395 (D. Del. 2003). The the judge, Liguori commented that
District Court ordered the State to grant Johnson was a “bad guy,” that he had
Johnson a new sentencing hearing. The “threatened” Liguori and his family, and
State timely appealed. In light of the that Liguori “wanted to see that justice was
stringent provisions of AEDPA, we done.” The judge assured counsel that he
reverse and direct the District Court to believed that Liguori’s comment would
dismiss Johnson’s habeas petition. not have any impact on his view of the
case or his pending sentencing decision.
I.
A. Defense counsel at the time, Sandra
Dean, a public defender, who had become
The relevant facts regarding Johnson’s trial counsel mid-way through
Johnson’s conviction and sentence are trial, voluntarily informed the judge of the
undisputed. The charges set forth in the background inform ation re gard ing
indictment stemmed from the alleged Johnson’s alleged threat to Liguori
kidnaping of his estranged sixteen-year-old eighteen years before, in 1981. Liguori,
daughter, Karen Vincent, on October 6, then a state prosecutor, prosecuted
1997. Johnson in an unrelated matter. Johnson,
Immediately before sentencing having been convicted and imprisoned,
Johnson following his conviction, the state sent a Christmas card to Liguori in 1981.
court trial judge held a conference with The Christmas card read: “You had fun in
both the prosecutor and defense counsel in ’81 and will be free in ’83.” Johnson
his chambers. The judge voluntarily escaped from prison, and it was debated
disclosed that he “had an out-of-court then whether he posed a threat,
conversation” with James Liguori, a presumably to Liguori and his family. The
Delaware attorney and former state judge told Dean that he had no knowledge
of the background information that she had
just related and commented that it perhaps
1 explained why Liguori made the comments
The respondent-appellants are
about Johnson.
Thomas Carroll, warden of the state
prison where Johnson is jailed, and the
Dean then informed the judge that
Attorney General of the State of
the local newspapers had reported the
Delaware. To simplify reference, we
purported threat at that time and that the
refer to them as the State of Delaware.

2
Public Defender’s Office had included the would request a different judge for the
newspaper clippings among the documents pending sentencing. The judge concluded
submitted to the court in relation to the conference by stating that he would not
Johnson’s present trial. Dean assured the allow Liguori to be a witness at Johnson’s
judge that Johnson’s 1981 Christmas card sentencing hearing.
was part of “public record.” The judge
and Dean both agreed that the purported B.
threat was well documented and that the
documents were all in the “whole file” Johnson obtained new counsel and
earlier submitted to the court. appealed his conviction and sentence. As
to Johnson’s sentence, the Delaware
The state prosecutor, Robert Supreme Court rejected his claim that the
O’Neill, in turn mentioned his own trial judge had erroneously failed to recuse
“recollection” of Johnson’s purported himself sua sponte. The court analyzed the
threat to Liguori and his family. He then issue first under the Delaware Judges’
told the judge that Liguori’s comment Code of Judicial Conduct and found the
about Johnson’s character was relevant to situation was not one of those enumerated
the court in meting out the sentence to him in the Code that would mandate recusal.
because he was charged as a “habitual Johnson v. State, 2002 WL 714520, at *3.
offender” under state law. He informed The court analyzed the issue then under a
the judge further that the court should two-prong test set forth under its prior
consider Johnson’s propensity for violence decisions. Id. (citing Stevenson v. State,
and his entire criminal history in 782 A.2d 249, 255 (Del. 2001); Los v.
determining the term of sentence. He also Los, 595 A.2d 381, 384 (Del. 1991)).
told the judge that Liguori arguably could Under the subjective prong, the court
be presented as a witness at Johnson’s noted the trial judge’s statement that “I
sentencing hearing. don’t view [the contact] to have any
impact on my view of the case or my
Finally, in response to O’Neill’s decision with regard to sentencing,” and
question as to whether she intended to file found it sufficient. Under the objective
any motion regarding the ex parte prong, the court did not find any
communication disclosed by the judge, “appearance of bias sufficient to cause
Dean told the judge she had no such doubt as to the judge’s impartiality.”
intention because the alleged incident was Specifically, the court observed that the
“nothing new,” “a matter of record,” “[trial] judge did not engage in any active
“happened a long time ago,” and the judge conduct demonstrating the appearance of
had indicated that he would not give it impropriety.” Id. (emphasis added)
“any undue weight.” Dean told the judge (distinguishing this case from Stevenson,
also that she would discuss the matter with 782 A.2d at 251, 257 n.3 (finding
Johnson and expressed doubt that he appearance of impropriety when a judge

3
who had previous contact with a victim standard of review is a question of law
affirmatively requested that the case be subject to review by this Court de novo.
assigned to him)). The court observed Chadwick v. Janecka, 312 F.3d 597, 605
additionally that Johnson’s previous n.6 (3d Cir. 2002).
counsel at trial admitted, and his new
counsel on appeal did not deny, that the A.
record in his case available to the trial AEDPA severely circumscribes a
court had already contained a more federal habeas court’s review of a state
detailed account of his alleged threat to court decision. AEDPA provides in
Liguori. Id. relevant part:

The District Court issued an order An application for a writ of habeas corpus
and opinion ruling against Johnson as to on behalf of a person in custody pursuant
his conviction but in favor of him as to his to the judgment of a State court shall not
sentence. Johnson v. Carroll, 250 F. be granted with respect to any claim that
Supp.2d at 398. Specifically, the court was adjudicated on the merits in State
agreed with Johnson that the trial court court proceedings unless the adjudication
judge erroneously failed to recuse himself of the claim—
sua sponte from sentencing Johnson (1) resulted in a decision that was contrary
following his voluntary disclosure that he to, or involved an unreasonable application
had received an out-of-court ex parte of, clearly established Federal law, as
communication from a former prosecutor determined by the Supreme Court of the
regarding Johnson. The court agreed that United States; or
the failure to do so created an appearance (2) resulted in a decision that was based on
of bias on the part of the judge in violation an unreasonable determination of the facts
of Johnson’s due process rights under the in light of the evidence presented in the
United States Constitution. State court proceeding.

II. 28 U.S.C. § 2254(d) (emphasis added).
It is not disputed that Johnson had The determination of what constitutes
exhausted his state remedy prior to his “clearly established federal law” is a
initiation of the underlying federal habeas “threshold question in § 2254 cases.”
action. It is also not disputed that AEDPA Lockyer v. Andrade, 538 U.S. 63, 71
governs a federal court’s review of (2003).
Johnson’s habeas action. The District
Court had subject matter jurisdiction under The statutory phrase “clearly
28 U.S.C. § 2254. We have appellate established” is defined as follows:
jurisdiction under 28 U.S.C. §§ 1291 and Section 2254(d)(1)’s “clearly established”
2253. The question of whether the District phrase refers to the holdings, as opposed to
Court appropriately applied the AEDPA the dicta, of [the Supreme] Court’s

4
decisions as of the time of the relevant clause requires the state court
state-court decision. . . . In other words, decision to be more than incorrect
“clearly established Federal law” under § or erroneous. The state court’s
2254(d)(1) is the governing legal principle application of clearly established
or principles set forth by the Supreme l a w m u s t b e o b j e c t i v e ly
Court at the time the state court renders its unreasonable. . . . It is not enough
decision. that a federal habeas court, in its
independent review of the legal
Id. at 71-72 (citations omitted) (emphasis question, is left with a “firm
added) (internal quotation marks omitted). conviction” that the state court was
“erroneous.” [The Supreme Court
The statutory phrase “contrary to” has] held precisely the opposite:
is defined as follows: Under § 2254 (d)(1)’s
[A] state court decision is contrary “unreasonable application” clause,
to [the Supreme Court’s] clearly then, a federal habeas court may
established precedent if the state not issue the writ simply because
court applies a rule that contradicts that court concludes in its
the governing law set forth in [the independent judgment that the
Supreme Court’s] cases or if the relevant state-co urt dec ision
state court confronts a set of facts applied clearly established federal
that are materially law erroneously or incorrectly.
indistinguishable from a decision Rather, that application must be
of [the] Court and nevertheless objectively unreasonable.
arrives at a result different from
[the Court’s] precedent. Id. at 75-76 (citations omitted) (emphases
added) (internal quotation marks omitted).
Id. at 73 (internal quotation marks
omitted). B.
The District Court acknowledged
The statutory phrase “unreasonable that it was bound by AEDPA’s stringent
application” is defined as follows: standard in reviewing the merits of
[U]nder the “unreasonable Johnson’s habeas claims. The court
application” clause, a federal agreed with Johnson that the Delaware
habeas court may grant the writ if Supreme Court’s decision was “contrary to
the state court identifies the correct or an unreasonable application of federal
governing legal principle from [the law and an unreasonable application of the
Supreme] Court’s decisions but facts in light of the evidence.” Johnson v.
unreasonably applies that principle Carroll, 250 F. Supp. 2d at 403.
to the facts of the prisoner’s case.
The “unreasonable application” The District Court and Johnson

5
relied on three United States Supreme the judge, it did not consider the
Court decisions, In re Murchison, 349 U.S. reaction of the reasonable observer
133 (1955), Liljeberg v. Health Services and the related risks of injustice to
Acquisition Corp., 486 U.S. 847 (1988), the parties and undermining the
and Liteky v. United States, 510 U.S. 540 public’s confidence in the judicial
(1994). 2 The Court agreed with Johnson process that result from the
that the trial judge’s failure to recuse continued participation of a judge
himself sua sponte gave rise to an in a proceeding despite the judge’s
appearance of bias and that the appearance appearance of bias. See Stevenson
of bias violated his due process rights. [v. State], 782 A.2d [249, 258 (Del.
The Court wrote: 2001) (en banc)]. Thus, the Court
concludes that the Delaware
In this case, it appears to the Court Supreme Court decision was not
that the Delaware Supreme Court entirely consistent with federal law
limited its analysis to the active and was not a reasonable
conduct of the trial judge, an application of the facts in light of
analysis which is inconsistent with the evidence.
the concept of an appearance of
bias. In addition, the Court did not Johnson v. Carroll, 250 F. Supp. 2d at 404
consider the impact of Liguori’s (emphases added).
comments that “he wanted to see
that justice was done.” In these C.
circumstances, Liguori’s ex parte Johnson has not asserted, and there
“sentencing recommendation” is no evidence, that the trial judge
could well create a situation in harbored any actual bias toward him. He
which a reasonable observer would argued, and the District Court agreed, that
q u estion the trial j u d g e ’s the ex parte communication created an
im pa rtia lity. Because th e appearance of bias and that the appearance
Delaware Supreme Court limited of bias violated his due process rights
its analysis to the active conduct of under the United States Constitution.

Under the plain language of §
2 2254(d), as well as the United States
The District Court also relied on
Supreme Court’s case law, we are
Stevenson v. State, 782 A.2d 249 (Del.
presented only with one narrow issue:
2001), to support its conclusion.
whether the Supreme Court has ever held
Because § 2254(d)(1) expressly limits
in any of its decisions existing at the time
federal law jurisprudence to decisions by
of the District Court’s judgment, including
the United States Supreme Court, the
the three cases relied on by Johnson and
state court case will be disregarded in our
the District Court, that an appearance of
review.

6
bias on the part of a state court judge, the facts,” as expressed by the District
without more, violates the Due Process Court. The state court adjudicated
Clause of the United States Constitution. Johnson’s appeal of his sentence under the
We are not, and cannot be, concerned with Delaware Judges’ Code of Judicial
the issues of whether the trial judge should Conduct and its own case law regarding
have recused himself sua sponte or the recusal standard for Delaware judges.
whether the ex parte communication at
issue was sufficient to constitute an As conceded by the District Court
appearance of bias. We assume that there in its later decision to grant the state’s
was an appearance of bias. motion for an enlargement of the stay of its
judgment pending the resolution of this
We note first that the District Court appeal, its earlier decision granting habeas
has significantly changed the statutory relief “was based on an analogy to
language of § 2254(d) in its presentation Supreme Court cases related to the issue of
of the issue before it. The phrase “clearly recusal under 28 U.S.C. § 455 [for federal
established” was noticeably absent in the judges] and not on direct precedent related
court’s presentation of the § 2254(d)(1) to the trial judge’s appearance of bias
prong, and the court substituted the under the Due Process Clause.” Johnson
s t a tu t o r y p h r a s e “ u n r e a s o n a b l e v. Carroll, No. 02-562 - JJF, 2003 WL
determination of the facts in light of the 22136302 at *1 (D.Del. Sept. 10, 2003).
evidence” with the phrase “unreasonable (emphases adde d.) Th is belate d
application of the facts in light of the realization was tantamount to an admission
evidence” in its presentation of the § that none of the Supreme Court decisions
2254(d)(2) prong. See Johnson v. Carroll, relied on by the District Court in its earlier
250 F. Supp. 2d at 404. Because the decision “clearly established” that mere
AEDPA standard is strict, the Court’s appearance of bias, without more, violates
omission and deviation were erroneous the Due Process Clause. Our own reading
and distorted its analysis. of the cases shows that they do not stand
for any such holding, and we are not aware
We note also that despite its of any other Supreme Court decision that
presentation of the § 2254(d)(2) prong, the has so held.
District Court did not analyze the
Delaware Supreme Court’s decision under The Supreme Court held in In re
that prong. The reason is obvious: the Murchison, 349 U.S. 133 (1955), that it
decision of the state appellate court did was unconstitutional for the same state
not, and could not, involve any judge, after a full hearing in open court, to
“determination of facts” regarding the punish contempt, previously committed
undisputed ex parte communication at before him while acting as a one-man
issue. Nor did the state court’s decision “judge-grand jury” permitted under then
involve any “unreasonable application of Michigan laws. “It would be very strange

7
if our system of law permitted a judge to adjudicate a case where he has an interest
act as grand jury and then try the very in the outcome, does not stand for the
persons accused as a result of his conclusion, drawn by the District Court
investigations.” 349 U.S. at 137. The and Johnson, that a judge with an
Court concluded that “no man can be a appearance of bias, without more, is
judge in his own case and no man is required to recuse himself sua sponte
permitted to try cases where he has an under the Due Process Clause. Johnson
interest in the outcome.” Id. at 136. That has not alleged, and there is no evidence,
conclusion was based on “the basic that the trial judge here had a personal
requirement of due process” that the interest in the outcome of the sentence.
defendant receive “[a] fair trial in a fair
tribunal.” Id. The Court commented that The Supreme Court held in Liteky
although fairness certainly required “an v. United States, 510 U.S. 540 (1994), that
absence of actual bias,” “our system of law recusal under 28 U.S.C. § 455(a) was
has always endeavored to prevent even the subject to the limitation known as the
probability of unfairness.” Id. The Court “extrajudicial source” doctrine or factor.
acknowledged that its “stringent rule may That statute requires a federal judge to
sometimes bar trial by judges who have no “disqualify himself in any proceeding in
actual bias and who would do their very which his impartiality might reasonably be
best to weigh the scales of justice equally questioned.” Specifically, the Court
between contending parties.” Id. concluded that apart from surrounding
However, “to perform its high function in comments or accompanying opinion,
the best way justice must satisfy the evidencing such “deep-seated favoritism
appearance of justice.” Id. (internal or antagonism” as would make fair
quotation marks omitted). judgment impossible, judicial rulings alone
“cannot possibly show reliance upon an
The District Court and Johnson extrajudicial source.” Id. at 555. In
relied on the above language to support addition, opinions formed by the judge on
their conclusion that an appearance of bias the basis of facts introduced or events
violated the Due Process Clause. In re occurring during current or p rior
Murchison does not stand for that broad proceedings are not grounds for a recusal
conclusion. Instead, its holding, as motion unless they display a similar degree
opposed to dicta, is confined to the basic of favoritism or antagonism. Id.
constitutional principle of prohibiting a
judge from adjudicating a case where he The Liteky holding is limited to the
was also an investigator for the interpretation of the recusal standard under
government. The rest of the language § 455(a) for federal judges. Facially, it
quoted in the preceding paragraph merely does not stand for the conclusion, drawn
explains the holding. Even a generalized by the District Court and Johnson, that
reading of the holding, that a judge cannot appearance of bias alone on the part of a

8
state judge makes that judge’s decision that the university had just approved
subject to federal habeas review under § reopening negotiations with the defendant.
2254(d)(1). To the extent that the holding
is relevant, it undercuts, rather than Following two days of trial, the
supports, Johnson’s claim. Johnson has judge immediately announced his intention
not alleged, and there is no evidence, that to rule for the defendant. After the trial,
the trial judge harbored any deep-seated but before issuing the verdict, the judge
antagonism toward him. It is not disputed did not attend a university board meeting,
that Johnson’s alleged threat to Liguori which discussed the terms of a sale
was documented in the records available to agreement with the defendant. The
the trial judge prior to the sentencing. proposed agreement provided that the
Under Liteky, an opinion formed by a agreement would be void if the defendant
federal judge, which the judge here was failed to retain the disputed ownership of
not, on the basis of facts introduced at the corporation. The judge did not read
trial, would not be grounds for a recusal the minutes of that meeting until he had
motion, even had one been filed by rendered judgment for the defendant.
Johnson.
Under the circumstances of that
Similarly, the Supreme Court’s case, the Supreme Court concluded that
holding in Liljeberg v. Health Services the judge’s participation in the case
Acquisition Corp., 486 U.S. 847 (1988), is created a strong appearance of impropriety
limited to an interpretation of the recusal and plainly violated § 455(a), even if he
standard for federal judges under § 455(a), lacked actual knowledge of th e
as it related to the specific facts of the university’s interest in the outcome of the
case. In that case, a federal judge dispute involving the defendant. Id. at
conducted a bench trial involving a dispute 859. Specifically, the Court held that the
over the ownership of a corporation purpose of the statute, to promote public
formed by the defendant in that action for confidence in the integrity of the judicial
the purpose of constructing and operating process, did not depend on whether the
a hospital. The judge issued a verdict in judge actually knew of the facts creating
favor of the defendant. The judge had an appearance of impropriety, so long as
been a member of the board of a university the public might reasonably believe that he
and regularly attended its meetings. At the knew.3 Id. at 859-60. The Court
time of the trial involving the defendant,
the judge knew that the defendant had
negotiated extensively with the university 3
The Court pointed to four facts that
regarding the purchase of a piece of real
might cause an objective observer to
estate property owned by the university for
question the judge’s impartiality and
the construction of the proposed hospital.
justify the Court’s decision to affirm the
The judge also knew at the time of the trial
vacating of the judgment in favor of the

9
 concluded that the facts of that case
warranted the application of § 455(a)
because the violation was “neither
defendant under Federal Rule of Civil
insubstantial nor excusable.” Id. at 867.
Procedure 60(b)(6). First, in view of the
Although the judge did not know of his
financial importance of the defendant’s
“fiduciary interest in the litigation, he
project to the university, it was
certainly should have known.” Id. at 867-
“remarkable” that the judge, who had
68.
regularly attended the meetings for the
university board for a decade,
It is obvious that the Liljeberg
“completely forgot” about the
Court’s holding is limited to an
university’s interest in having a hospital
interpretation of §455(a) governing recusal
constructed on its property. Id. at 865.
of federal judges and based on the specific
Second, it was an “unfortunate
facts of that case, where the judge’s
coincidence” that although the judge had
putative fiduciary interest in the outcome
regularly attended the university board’s
of the litigation, as being a member of the
meetings, he did not attend that particular
university board, conflicted with his
post-trial meeting that discussed and
judicial obligation to be free of actual and
approved the terms of the sale agreement
perceived impartiality. Even though the
with the defendant. The minutes of that
Court mentioned that the concern for the
meeting were mailed to the judge four
integrity of judges had “constitutional
days before he issued judgment; if he had
dimensions,” id. at 865 n.12 (citing Aetna
opened the envelope upon receipt, he
Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
would have been under a duty to recuse
(1986) (citing Murchison, 349 U.S. at
himself before he rendered judgment. Id.
136)), its holding was not based on the
at 866. Third, it was “remarkable,” and
Due Process Clause. Liljeberg neither
“quite inexcusable,” that the judge failed
holds nor suggests that an appearance of
to recuse himself after he had finally read
bias on the part of a federal judge, without
the minutes. “A full disclosure at that
more, violates the Due Process Clause.
time would have completely removed
any basis for questioning the judge’s
In contrast to the federal judge in
impartiality and would have made it
possible for a different judge to decide
whether the interests—and
appearance—of justice would have been vacate, the judge still did not
served by a retrial.” Id. By his silence, acknowledge that he had known about
the judge deprived the plaintiff of a basis the university’s interest both shortly
for making a timely motion for a new before and shortly after the trial. Nor did
trial and also deprived it of an issue on he indicate an awareness of a duty to
direct appeal. Id. at 867. Finally, when recuse himself after he had read the
the plaintiff’s counsel filed its motion to minutes. Id.

10
Liljeberg, the state trial judge here constitutional grounds under 28 U.S.C. §
voluntarily disclosed the ex parte 2255 (regarding collateral review of a
communication that he had received from federal sentence) unless “an appearance of
a non-party prior to sentencing Johnson, impropriety . . . rose to the level of
providing him with a basis for making a fundamental defect resulting in a complete
timely motion for recusal. In contrast to miscarriage of justice.” Id. (internal
Liljeberg, this case is devoid of any quotation marks omitted).
evidence showing a potential conflict of
interest involving fiduciary or pecuniary The Seventh Circuit in Del Vecchio
interest. v. Illinois Dept. of Corrections, 31 F.3d
1363 (7th Cir. 1994) (en banc), expressly
In conclusion, none of the Supreme rejected the view that an appearance of
Court cases relied on by the District Court, bias amounted to a due process violation.
and we are aware of none, has held or The court acknowledged that “the due
clearly established that an appearance of process clause sometimes requires a judge
bias on the part of a judge, without more, to recuse himself without a showing of
violates the Due Process Clause. Because actual bias, where a sufficient motive to be
the position taken by the District Court is biased exists.” Id. at 1371 (citing Tumey
not supported by any United States v. Ohio, 273 U.S. 510, 532 (1927); In re
Supreme Court case law to date, the Murchison, 349 U.S. 133, 136 (1955);
District Court’s grant of habeas relief is Aetna Life Ins. Co. v. Lavoie, 475 U.S.
reversible error under AEDPA. 813, 825 (1986)). “Despite the Supreme
Court’s broad pronouncements about ‘the
D. appearance of justice,’” the Del Vecchio
Our sister Courts of Appeals have court concluded that it “cannot answer the
rejected arguments similar to those made due process question simply by concluding
by Johnson. The Second Circuit that it may have looked bad for [a state
concluded that § 455(a)’s “appearance of trial judge] to preside at trial.” Del
impropriety standard” is not “mandated by Vecchio, 31 F.3d at 1371.
the Due Process Clause.” Hardy v. United
States, 878 F.2d 94, 97 (2d Cir. 1989). The court specifically rejected the
The Fifth Circuit observed that “section view that “th e Supre me C ourt’s
455 and the Due Process Clause are not ‘appearance of justice’ language from
coterminous.” United States v. Couch, Murchison and Aetna as holding that the
896 F.2d 78, 81 (5th Cir. 1990). due process clause requires judges to
“[C]onduct violative of section 455 may recuse themselves based solely on
not [necessarily] constitute a due process appearances.” Id. The court concluded, as
deficiency.” Id. (citations omitted). The do we, that those Supreme Court decisions
Couch court held that a federal sentence “present no such holding. . . .” Id. The
was not open to collateral review on court observed further:

11
The Supreme Court has never rested the agree with the conclusions of our sister
vaunted principle of due process on Courts of Appeals.
something as subjective and transitory as
appearance. Instead, the Supreme Court III.
simply uses the “appearance of justice” Because the Supreme Court’s case
language to make the point that judges law has not held, not even in dicta, let
sometimes must recuse themselves when alone “clearly established,” that the mere
they face possible temptations to be appearance of bias on the part of a state
biased, even when they exhibit no actual trial judge, without more, violates the Due
bias against a party or a cause. Process Clause, the District Court’s
judgment based on that erroneous view
In short, bad appearances alone do must be reversed under AEDPA. The case
not require disqualification. . . . When the will be remanded to the District Court with
S u p r em e Co urt talks a bou t the directions to dismiss Johnson’s petition for
“appearance of justice,” it is not saying a writ of habeas corpus.
that bad appearances alone require
disqualification; rather, it is saying that
when a judge is faced with circumstances
that present “some [actual] incentive to
this question by presuming the honesty and
find one way or the other” or “a real
integrity of those serving as adjudicators.
possibility of bias,” a court need not
Disqualification is required only when the
examine whether the judge actually was
biasing influence is strong enough to
biased. . . . Absent the incentive for bias,
overcome that presumption, that is, when
however, disqualification is not required
the influence is so strong that we may
despite bad appearance.
presume actual bias. This occurs in
situations . . . in which experience teaches
Id. at 1371-72 (citations omitted). 4 We
that the possibility of actual bias is too
high to be constitutionally tolerable. A
court must be convinced that a particular
4
After an extensive survey of the influence, under a realistic appraisal of
Supreme Court decisions involving psychological tendencies and human
disqualifications of judges, the Del weakness, poses such a risk of actual bias
Vecchio court summarized the standard or prejudgment that the practice must be
for disqualifications as follows: forbidden if the guarantee of due process
is to be adequately implemented.
The question is not whether some possible
temptation to be biased exists; instead, the
question is, when does a biasing influence DelVecchio, 31 F.3d at 1375 (citations
require disqualification? Consistent with omitted) (internal quotation marks
the common law, we begin in answering omitted).

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